from the does-he-think-he's-making-a-point? dept

Every so often when people find out about the position we tend to take on copying, they hit back with what they think is a "gotcha" of something along the lines of "you wouldn't feel that way if someone copied your stuff." They really do. All the time. There are a number of scraper/spam blogs that copy and repost Techdirt's content, and it's really no big deal. As we've noted for a long time, all of the content that we publish directly we've declared to be in the public domain, so feel free to copy it with some caveats (which we'll discuss below). Last week, we launched our latest T-shirt, the "Copying is Not Theft" shirt:

So far there's been a great response to it, but some people seem really upset by the basic message. On Twitter and in our comments, we've had a few people pull out the "Oh, well how will you feel when I copy that shirt!" line of thinking that they'd found some sort of gotcha. The oddest, of all, however, was John Anderson, who apparently runs something called the "Global Anti-Counterfeiting Group" insisting that he's going to counterfeit our shirt.

Yes, yes, he's obviously just being snarky and thinking he's making a point, but it still seems odd for someone who insists he's against counterfeiting to basically say he's planning to counterfeit our shirt. At the very least, it actually gives us a platform to make our point: if he really wants to do so, he can absolutely go and make those cheap $5 shirts. But they won't sell. Why? This is the whole point we've been trying to make all this time. The reason people buy shirts from us is because (1) they like the shirts and (2) they want to support Techdirt. Somehow, I get the feeling that the community that John Anderson has built up around his Global Anti-Counterfeiting Group aren't exactly the kind of people who would jump at an offer to buy "Copying is Not Theft" T-shirts, even if they are 25% the price of our T-shirts.

This is the point that so many fail to get when they freak out about people copying. If you've built up a community of people who want to support you and people who like and are interested in what you do, there's nothing to fear from copying. It's only when you don't have that kind of support, or when you're trying to force something on people that they don't want that you suddenly have to worry about copying.

This is why we've always pointed to the same response when people say they're going to copy us and prove that we really are worried about copying or that copying really is theft. It's not. Here's what I wrote nearly a decade ago and it's still stands true today:

We have no problem with people taking our content and reposting it. It's funny how many people come here, like yourself, and assume you've found some "gotcha." You haven't. There already are about 10 sites that copy Techdirt, post for post. Some of them give us credit. Some of them don't. We don't go after any of them.

Here's why:

1. None of those sites get any traffic. By themselves, they offer nothing special.

2. If anything, it doesn't take people long to read those sites and figure out that the content is really from Techdirt. Then they just come here to the original source. So, it tends to help drive more traffic to us. That's cool.

3. As soon as the people realize the other sites are simply copying us, it makes those sites look really, really bad. If you want to risk your reputation like that, go ahead, but it's a big risk.

4. A big part of the value of Techdirt is the community here. You can't just replicate that.

5. Another big part of the value of Techdirt is that we, the writers, engage in the comments. You absolutely cannot fake that on your own site.

So, really, what's the purpose of copying our content in the manner you describe, other than maybe driving a little traffic our way?

This same thing holds true for counterfeiting goods as well. When we launched our first shirt, the Nerd Harder shirt, we saw a few copycats spring up on Teespring, complete with the language claiming that the shirts were from Techdirt, when they were not. We reached out to Teespring telling them we had no problem with them leaving up the T-shirts, but we would appreciate it if they didn't say that supporting them was supporting Techdirt. That's been consistent with our position all along, that in the realm of trademark, the one thing that does make sense is when it's used as a form of consumer protection. If buyers might be confused about who is really endorsing the product, that's a reasonable concern. But someone copying our shirt without pretending it's from us? That's totally cool. In fact, maybe they can make it better.

I mean, it's not like we even came up with the phrase "copying is not theft" either. It's the name of a truly wonderful song that Nina Paley wrote and illustrated:

Did we "steal" her song in taking the title and making it a shirt? Hell, no. We made a new thing. We took something that she did and we built on it to offer something new (cool T-shirts) to a different audience (ours), and so far, it seems to be working. If John Anderson thinks he can compete with his audience, he should go for it.

Hell, we'd be happy to compete with anyone doing so, because we know the message resonates with our audience. I'm not so sure it would resonate with the audience of some random person trying (and failing) to prove a point. So, bring it on.

And, yes, we've even made it extra easy for folks like John Anderson. If he likes, we've made the original image available as both a vector SVG file and a high-res PNG. So go ahead, John Anderson from the Global Anti-Counterfeiting Group. Go ahead and counterfeit our shirt. Knock yourself out. I imagine you'll sell somewhere close to zero of them. Though the members of your group may find it odd that the head of a Global Anti-Counterfeiting Group's first response to seeing a T-shirt he doesn't like is to talk about counterfeiting it. Right, John?

Anyway, if you'd like to make a point to John Anderson and the Global Anti-Counterfeiting Group, here's your opportunity. Buy one of our lovely Copying is Not Theft T-shirts.

from the speak-up dept

It's that time again. The White House's IP Enforcement Coordinator (IPEC) -- often called the IP Czar -- is asking for public input on the upcoming "Joint Strategic Plan on Intellectual Property Enforcement" that it will be releasing next year. The Joint Strategic Plan comes out every three years and is supposed to guide the federal government in how it handles priorities around intellectual property enforcement. Now, I recognize that the cynical among you will already be insisting that there is no value in responding to this, because the government is going to simply repeat the arguments of the legacy industries and its copyright extremists. However, in the past, these open comment periods have actually helped, and the two previous Joint Strategic Plans have not been as bad as expected. In 2010, we sent in our feedback and was pleasantly surprised that at least some of it was reflected in the plan. It recognized the importance of fair use and encouraging innovation. It also admitted that most studies on the impact of intellectual property on the economy were bogus.

Then, the second report, issued in 2013, was even better and presented a much more balanced understanding of intellectual property law, and how over-enforcement and over-expansion could create real harms as well. It also points out that truly the best way to deal with problems around "piracy" is through greater innovation, rather than relying on enforcement. It doubled down on supporting fair use, and noted that it was working with the Copyright Office to release an "index of major fair use decisions" -- something that finally came out just a few months ago and is actually pretty damn good.

In other words, this report need not just be a playground for Hollywood types looking to ratchet things up.

Still: there are concerns. The first two reports were done by the original IPEC, Victoria Espinel, who left the office a few years ago. This latest report will be overseen by the new IPEC, Danny Marti, who has only been in the job a few months. And, unfortunately, in one of his first speeches, he trotted out pretty much all of the ridiculous and debunked copyright extremist tropes about the need for greater protection, exaggerating the economic impact of intellectual property and demanding more "respect" for intellectual property (rather than earning more respect for it).

It's also somewhat concerning that in his blog post asking for public comments, he cites one of the most debunked statistics around, from the US Chamber of Commerce, concerning the "worldwide market for counterfeit and pirated products," which he argues is $1.8 trillion. Having spent years debunking earlier claims of $200 billion, the idea that it's magically shot up to $1.8 trillion is insane. What's incredible is that the "methodology" for the $1.8 trillion is laughable, and it's a shame that Marti would cite it. The Chamber of Commerce just took the already debunked numbers from 2008 (which, in case you are wondering were actually based on a number someone just made up in the 1980s and which has never been checked) and then "projected" out to 2015. Really. And Marti quotes it as if it has some validity.

And he does this despite the fact that actual credible sources like the Government Accountability Office and the OECD have both insisted that there is no evidence that the issue of counterfeiting is anywhere near as big as the earlier problems stated. Furthermore, multiple studies have further shown that counterfeiting is very rarely a true "economic loss" as it's almost never a substitution good, but rather an aspirational purchase. That is, the person buying the fake Rolex isn't taking any money away from Rolex, because they can't afford to buy a real one. In fact, multiple studies have found that those who buy counterfeit products regularly go on to buy the real product later, when they can afford to. In fact, it appears the purchase of a counterfeit often gives them a closer bond with the brand itself. And, in the end, estimates have suggested that actual counterfeiting is probably somewhere around 2 to 3% of the big numbers thrown around by the Chamber of Commerce.

So, you have to wonder, if Marti is tossing around numbers from one of the world's largest lobbying organizations, the US Chamber of Commerce, rather than from well respected and credible sources like the Government Accountability Office and the OECD, just where he's coming from as he puts together this report.

Hopefully, people can submit thoughtful and well-argued comments based on the details set forth in the Federal Register and help point Marti and the IPEC office in the right direction. Such comments are due by October 16th.

from the because-of-course-they-would dept

The Intellectual Property Owners Association (IPO) -- which is a sort of "super group" of companies looking to always ratchet up intellectual property laws -- had a brief note on their front page on Monday pushing for bringing back SOPA, but with a promise that it's for trademark law only (the story may disappear from the front page and apparently "archives" are for "members only"):

On September 7 the IPO Board of Directors adopted a resolution supporting in principle legislation to attack online trademark counterfeiting. Such legislation would enable brand owners to file suit against domestic websites selling or offering for sale or distributing counterfeit products, and also as to “foreign counterfeiting websites,” in order to obtain a court order that would require (a) that financial service providers cease processing payment transaction to the defendant(s) and the foreign counterfeiting website, at least in the United States, (b) that internet advertising service providers cease providing such services to the defendants and the foreign counterfeiting website, at least in the United States, and (c) any other injunctive relief the court may determine as appropriate.

The legislation should focus on trademark counterfeiting only; provide for nationwide personal jurisdiction and venue over any foreign counterfeiting website, so long as such is consistent with due process; and permit e-mail service of process to a domestic or foreign counterfeiting website without requiring leave of court based on the e-mail address listed in domain registration for the administrative or ownership contact and to the e-mail address found on the website, if no real or actual address is available for providing notice to the potential defendant.

All of that sounds nearly identical to parts of SOPA -- except the IPO seems to think that if they just focus on the trademark issue, it will be able to sneak it through without a SOPA-like eruption from the public. But the basics here are the same. Allowing companies a private right of action to block out sites (both domestic and foreign) deemed as "counterfeiting websites" is a dangerous plan. Note that, in the past, big brands have regularly declared perfectly legitimate resellers as counterfeiters, and have attacked and sued companies like eBay for not magically stopping people from selling counterfeit goods.

Of course, part of the problem is that these companies regularly exaggerate the issue of "losses" due to trademark infringement and counterfeiting. The numbers are stretched beyond belief. Meanwhile, multiple studies that have looked at the actual size of the problem have found it to be quite small. In fact, multiple studies have found that most people buying counterfeit goods aren't being fooled, but know they're buying counterfeit, but are only doing so because they can't afford the real version. And, the studies have noted, many of the same people later do buy the real version when they can afford it. In other words, counterfeit purchases are often aspirational, rather than acting as a substitute. They're not doing any harm.

And, of course, the real threat here is that if the IPO can sneak this kind of legislation through, it won't be that long until someone tries to slip in some language extending the law to copyrights as well. It'll be slipped in quietly, perhaps with some talk about "harmonizing" different regulations related to trademark and copyright law, hoping that no one notices that basically the original version of SOPA is now the law.

The same IPO notice also talks up its new "Girl Scout" patch, which we had discussed back in March. This was a patch designed by the IPO, but with the support of the US Patent and Trademark Office, so you know it's basically preaching maximalism:

Cookie selling teaches Girl Scouts valuable business practices. Now they have the opportunity to learn a few more in the form of IP. IPO Education Foundation recently partnered with the Girl Scout Council of the Nation’s Capital and the USPTO to develop the IP patch. The IP patch program teaches girls about the value of IP and the process for obtaining different rights. You can help by telling your friends about the patch or volunteering to talk to a troop about what you do. Click here for more information.

It's the same basic story we noted back in March. The plan is all about why intellectual property is valuable -- not taking a balanced view about where it creates more harm than good, and where other alternatives might be better. It's especially troubling that it's focused on girls entering science, technology, engineering and math studies, since those are areas where over-aggressive use of intellectual property have been most damaging, locking up knowledge, rather than increasing the kind of knowledge sharing that drives innovation forward.

from the sneaky,-sneaky dept

Thought ACTA was dead? While the EU Parliament may have strongly rejected it, and even with the EU Commission (who negotiated it) admitting that ACTA is dead, a variety of other countries still did sign on to the agreement. And, now, it appears that with basically no one paying any attention at all, Canada may be about to pass some laws to effectively tie itself to ACTA's ridiculous requirements. The bill was originally introduced back in March, but was never considered by the Canadian Parliament. However, in late October, it was reintroduced under a new code, C-8, and it looks like it's moving forward, despite almost no public discussion of it anywhere.

The whole point of ACTA, and this bill, are to unite two very different issues: counterfeiting and copyright infringement. The legacy copyright players have been trying to conflate these things for years. That's because they can point to the tiny, but very real, problem of counterfeit drugs or safety equipment that can cause serious damage... and then mix it with the very "large" issue of copyright infringement (where they can't show any actual damage or harm) and pretend that it's a big problem which puts tons of people at risk. Of course, none of that is true. Counterfeiting may be an issue, but it's a very small issue, and in the vast, vast majority of cases, with little to no threat of harm. But, the copyright legacy players have figured out that tying their bandwagon to the claim that "counterfeit drugs kill people" may help them to pass draconian copyright laws.

Bizarrely, the Canadian government appears to have bought this bogus argument, despite nearly all of the evidence suggesting it's wrong. Michael Geist made exactly this point to the Canadian Parliament, but nearly everyone else they heard from were industry folks insisting that they needed this new "anti-counterfeiting" bill. And the end result is it appears that the Canadian Parliament is about to move forward on the bill without hearing from anyone other than Geist who might represent the interests of the public at large. As Howard Knopf notes:

What this exercise it will do – and has done – is to allow lobbyists with a maximalist agenda to use this fake problem of fakes to create the potential for interference with legitimate trade in parallel imports, vastly increased criminalization of everyday “infringement”, shifting of enforcement costs from the private sector to the taxpayer, and the interference with the transshipment of generic drugs and other legitimate products. The new law will allow incredible opportunity for abusive or even simply incompetent enforcement. This can be very costly to large and SME business, not to mention consumers. This is perhaps the most sweeping legislation in Canadian IP law in 70 years, and it is being done without adequate hearings, study or the demonstration of any need. Anyone looking for counterfeit products can find them on the street in mid-town and downtown Manhattan. One doesn’t find this kind of flagrant counterfeiting in Canada. The “evidence” of a major problem with counterfeit good that can’t already be dealt with via existing laws almost entirely anecdotal or absent. Piling on of responsibility to border officials is an unnecessary and costly mistake. The DNA and fingerprints of the movie and record industries are all over this bill.

Tragically, there appears to be almost no media coverage of this at all. Basically, it looks like Canadian politicians waited until everyone was looking elsewhere, and then tried to sneak ACTA right through the Parliament. This would be a major win for the movie and recording industries in the US, but a massive loss for Canadians and Canadian innovation.

from the the-details-matter dept

This has been rumored for ages, and the White House has certainly been pushing for this almost non-stop for years, but in a similar vein to the ISPs and the RIAA/MPAA coming to a "voluntary agreement" to implement a six strikes policy, the major online ad networks, led by the Internet Advertising Bureau (IAB) along with Google, Microsoft, Yahoo and AOL (and, yes, with the White House) have come to an agreement to stop their ads from appearing on "rogue" sites that are engaged in copyright infringement or selling counterfeit goods via a series of "best practices." The agreement says that the various ad networks who are participating will strive to keep their ads off of sites "that are principally dedicated to selling counterfeit goods or engaging in copyright piracy and have no substantial non-infringing uses."

I have some concerns about this, as I'll discuss below, but on the whole it appears that there's actually some good to come out of this. First off, it's worth noting that all of these guys already have terms of service that bar the use of their ads on sites that primarily engage in such things. While various tech industry haters still tend to believe otherwise, the tech industry has been pretty good at keeping their ads directly away from such sites for years. The ads that tend to get on those sites come from tiny third party ad networks that no one has heard of. In fact, some of the "evidence" against Megaupload was that from very early on, Google kicked it out of its ad program.

Another sign that this agreement probably isn't that bad: the MPAA has already put out a statement about how they hate it, saying that it's not enough. Chris Dodd specifically argues that nothing is going to be enough until everyone else does the copyright holders' job for them, and proactively polices the internet. The fact that no one but the copyright holder can know for certain if something is infringing is not even allowed to enter the discussion in the corrupt minds of the MPAA.

In this case, it appears that this new agreement involves something of a more formalized notice and (possible) takedown system. Copyright holders can submit a complaint to each ad network (individually, not to some central authority), and then the ad network gets to decide how it handles the notice -- but, under the best practices, they will strive to keep their ads from appearing on such sites. Since this is just a voluntary agreement, unlike, say, the DMCA, there's no automatic liability shifting in refusing to pull the ads -- and the agreement makes it clear that the best practices themselves do not establish liability, nor do they create a duty to proactively monitor (though, I could see how copyright holders might later try to raise that issue).

The good thing about this program is that it appears those who worked on it clearly recognize that certain copyright holders may be a little over eager in claiming certain sites are "pirate" sites when they might not be. So the program is designed to be more transparent and to include the clear ability for a site to appeal such a decision and get the ad networks to reconsider. In some ways, this is a step forward from the way it was before, in which Google or others might just kick you out of the program with almost no communication and absolutely no right of appeal. In fact, Google is somewhat infamous for its big white monolithic response to kicking people out of its ad network: basically just telling them "you've violated our terms" with no explanation, no way to find out more, and no way to appeal. Adding an actual appeals process is a step up.

That said, there are still two key concerns here. The first is that even with an appeals process and various safeguards, it's quite likely that legitimate sites that have significant non-infringing purposes will still get caught up in this. We've seen too many false takedowns, false attacks and the like for that not to happen. And even with an appeals process, losing your entire ad network for a period of time can completely sink a small business (and, any site making money on these kinds of ad networks is, by definition, a small business -- because none of these ad networks pay out very much to individual sites).

The second concern is a bigger one: which is that if you look at the history of some of the most important innovations that have helped the content industry grow, they almost always start out as what those content industries deemed "principally dedicated to infringing activity." In the early days of radio, cable TV, VCRs, DVRs, mp3 players, YouTube, etc... they were all attacked as being hotbeds of infringement. Yet, as they grew in popularity, business models developed that helped the content industry tremendously. As I've pointed out in the past, it was only four years after Jack Valenti declared that the VCR was the "Boston Strangler" of the movie business that the home video business surpassed the box office in revenue for Hollywood. Yet, if we allow a system where the copyright holders are able to simply starve these new businesses completely before they've had a chance to develop and mature, I worry that we miss the next VCR, the next DVR, the next mp3 player, the next YouTube -- and whatever tool that comes next that allows content creators to do an even better job connecting with fans, creating new works, distributing new works, promoting those works and eventually monetizing those works.

It's easy to simply try to label all new upstarts as "evil" and kill them off, but history has shown that's generally not a very good idea. The reason those upstarts are successful is not that they enable infringement, but rather that they enable something new and useful that people want and like. The real opportunity is in figuring out ways for content creators to use that to their advantage -- and I fear that programs like this make it easier to simply snuff them out too early.

That said, if there needs to be such a program, this one appears to be the least destructive approach. It doesn't create liability or a proactive duty to police the internet. It allows the networks to make the final call on what do with complaints. It gives the accused sites the ability to appeal whatever decisions are made. Either way, I would imagine that the MPAA and the RIAA already have their incredibly long lists of sites ready and are submitting them everywhere they can... and within a few weeks we'll watch them issue statements about how the new program isn't working and how more needs to be done.

from the oh-come-on dept

You may have heard about a fair bit about Attorney General Eric Holder testifying before the House Judiciary Committee on Wednesday morning. He was -- quite reasonably -- raked over the coals by members of both parties for the incredible decision to obtain phone records from AP reporters, under very questionable circumstances.

There was one other odd tidbit that might be worth discussing around here as well. Suddenly, in the middle of all the questions about the Associated Press, Rep. Mel Watt -- who, during the SOPA markup famously declared that he didn't understand the technology, or why tech people were concerned, but also that he didn't care and wanted to pass SOPA without bothering to understand -- started asking questions about copyright and "enforcement." Yes, Mel Watt is the ranking member on the IP subcommittee (scary enough in its own right), but it seemed completely off topic.

Most of the coverage on Watt's questioning has focused on the fact that he did most of his questioning with his two-year-old grandson on his lap, who interrupts the questioning at one point. But the questions were ridiculous, as were the answers, and deserve some scrutiny. First, despite it being soundly rejected when SOPA went down in flames, Watt asks Holder if Congress should make online streaming of infringing material a felony, rather than the misdemeanor that it currently is. There are all sorts of problems with this idea, as we've discussed in the past, but Holder embraced the idea wholeheartedly, saying that the Justice Department would love to have "another tool," ignoring just how widely the DOJ has abused existing tools to shut down legitimate companies and websites.

And then Watt directly asks about a connection to terrorism:

Watt: Are there increasing indications of links between this problem and terrorism? Have you found any of those links and would you describe them for the committee?

Holder: Yes, that's a very good question. It's something that's very worrisome. As we saw organized crime get into a variety of other businesses in order to support their efforts, we're now seeing terrorist groups getting into the theft of intellectual property. Again, to generate money to support what they're trying to do for their terrorist means. So we have to broaden our enforcement efforts, broaden the investigative efforts that we take, to examine what are the precise reasons why people are engaging in this kind of intellectual property thievery. And to consider whether or not there's a terrorist connection to it. This is a relatively new phenomenon, but one we have to be aware of.

Watt then asks about things that Congress can do to help, and Holder says he's "particularly concerned" about this problem, and he asks for "enhanced penalties" for "intellectual property theft."

That all sounds very interesting. And it might be, if there were any truth to it at all. Unfortunately, there's not. We've yet to see a single piece of evidence supporting the idea that terrorists are involved in infringement. The claim has been around for years, and we've asked for evidence for years, and none has ever been provided. Because it doesn't exist. Researcher Joe Karaganis looked into the issue a few years ago and found that there were some very vague reports of organized crime being involved in counterfeit CDs/DVDs in the 80s and 90s. But that was small and short-lived -- in large part because online infringement basically made that business obsolete:

Arguing that piracy is integral to such networks [organized crime and terrorism] means ignoring the dramatic changes in the technology and organizational structure of the pirate market over the past decade. By necessity, evidentiary standards become very loose. Decades-old stories are recycled as proof of contemporary terrorist connections, anecdotes stand in as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low. The RAND study, which reprises and builds on earlier IFPI and Interpol reporting, is constructed almost entirely around such practices. Prominent stories about IRA involvement in movie piracy and Hezbollah involvement in DVD and software piracy date, respectively, to the 1980s and 1990s. Street vendor networks in Mexico City--a subject we treat at length in the Mexico chapter--are mischaracterized as criminal gangs connected with the drug trade. Piracy in Russia is attributed to criminal mafias rather than to the chronically porous boundary between licit and illicit enterprise. The Pakistani criminal gang D-Company, far from "forging a clear pirate monopoly" in Bollywood, in RAND's words, plays a small and diminishing part in Indian DVD piracy--its smuggling networks dwarfed by local production.

The US record isn't more convincing in this regard. Jeffrey McIllwain examined the Department of Justice’s IP-related prosecutions between 2000 and 2004 and found that only 49 out of the 105 cases alleged that the defendant operated within larger, organized networks. Nearly all of these were "warez" distribution groups for pirated software--hacker communities that are explicitly and often fiercely non-commercial in orientation. McIllwain found "no overt references to professional organized crime groups" in any of the DOJ's criminal charges (McIllwain 2005:27). If organized crime is a serious problem in these contexts, it should not be difficult to produce a stronger evidentiary record.

In other words, Rep. Mel Watt, a well known supporter of Hollywood's position on copyright, tossed a bogus softball FUD talking point to Eric Holder in the middle of an important hearing about a very different subject, and Holder proceeded to make claims to Congress that have been made for decades without a single bit of evidence to support it.

Holder has plenty of other serious issues to deal with these days, but it makes me incredibly uncomfortable to see our Attorney General appear to be spreading known scare stories that have been proven bogus from decades ago as if they're new, despite a single bit of evidence concerning any modern connection to terrorism.

from the government-overreach dept

Earlier this week, we predicted that either today or tomorrow, we'd hear about ICE and the DOJ once again seizing a bunch of websites... and here it is. This morning, ICE announced that it had seized another 313 websites based on its highly questionable legal theory concerning taking down websites without any adversarial hearing. Of course, lately it's moved away from doing site seizures concerning websites that deal with content/copyright issues, and focused instead on those it claims are selling counterfeit merchandise. Along those lines, ICE announced that it arrested a few people with counterfeit Super Bowl merchandise.

Of course, this is all for show. Waiting until just a couple days before the Super Bowl is pretty ridiculous, since if people were going to buy merch, they already did so. This is just ICE, once again, generating headlines for the corporations it seems to think it represents. As is his usual MO, ICE boss John Morton talked up just how "successful" this operation was, based on his own metrics, claiming "This just takes good old-fashioned police work, people getting out on the streets."

Funny, then, that he completely leaves out the parts where they seized legitimate merchandise and hassled the seller. It appears that, sometimes, ICE just isn't very good at "good old-fashioned police work." And that's especially true when it seems to be taking orders from big companies, rather than the public it is supposed to be protecting.

from the nice-use-of-ICE-resources,-guys dept

It's cyber-Monday, the day when many of us basically go to Amazon.com and get a bunch of gifts for friends and family because going to the store this time of year is as dangerous as a North Korean prison camp. I say "many of us" partially to account for anyone out there who doesn't celebrate Christmas and partially to account for the hardworking folks at America's Immigration and Customs Enforcement, who instead spend the day posing as shoppers to shut down internet sites that they think are selling infringing or counterfeit products and replacing their web pages with handy little ICE "naughty" badges (Just like Santa would do! Yay!). We covered their exploits last year as they went about taking down 150 domains, sans the websites in question being able to tell their side of the story. It's like justice, minus any of that annoying rights of the accused crap!

Well, ICE is at it again, this time taking down only 132 websites, in their effort to stop commerce they decide they don't like.

"This operation is a great example of the tremendous cooperation between ICE and our international partners at the [Intellectual Property Rights Coordination Center]," ICE Director John Morton said in a statement. "Our partnerships enable us to go after criminals who are duping unsuspecting shoppers all over the world. This is not an American problem, it is a global one and it is a fight we must win."

As with last year, ICE appears to be focusing on trademark infringers and counterfeiters, but they haven't released the list of sites seized yet, so we can't be sure there aren't any Dajaz1-type screw-ups in there as well. Still, the question remains why they have to do this en masse on one day instead of going through the more tedious, though transparent, process of taking the sites to court. Yes, the article states that they are getting court orders to take down the sites, but why not actually drag site owners into the courtroom and give them a chance to represent themselves before shutting down their ability to operate entirely? Is it likely that most, if not all, of these sites are infringing some way? Perhaps, but given that we've seen ICE take down innocent sites in the past, why not err on the side of caution and actually follow the justice process?

I also find Morton's comment about this not being an "American problem" quite amusing given the annual cyber-Monday take down blitz. If this isn't an America-focused event, why is it being conducted on cyber-Monday, a predominantly American marketing term?

from the too-bad dept

Earlier this year, after a series of long and detailed phone calls in which I tried to explain to producers of CNBC's 'Crime Inc.' why the claims about "piracy" were exaggerated, and how conflating physical bootlegging and unauthorized digital downloads was a mistake, we did a filmed interview that took place over a few hours in San Francisco. I had hoped that maybe, just maybe, they'd be able to present the story of copyright infringement with a bit of nuance, rather than the typical "run for your lives! theft! piracy! gangsters!" Unfortunately, it appears that the show went in the other direction and did the cliche and totally bogus storyline that digital downloads are a form of organized crime costing billions. I haven't yet seen the whole program, but judging from the show's online description and "extras" along with its video preview, this is going to be more of the same garbage:

From the voice-over, scary music, and video clips, this looks like a repeat of what 60 Minutes put on a few years ago. Given that CNBC is (of course) owned by NBC Universal, perhaps that's not too surprising. But I had hoped that maybe, just maybe, they could be convinced to present a more nuanced position. Instead, the video clip clearly presents downloading in the same light as physical bootlegging, claims billions of "losses" and suggests the whole thing is a criminal epidemic, rather than a situation in which a failure by the entertainment industry to adapt is a major part of the problem.

One of the "extras" shows ICE boss John Morton gleefully talking about seizing and forfeiting domain names -- which is odd timing given that just yesterday the feds had to give back one of those domain names because Morton and his crew totally screwed up. But don't bet on seeing that in this report.

The show officially airs today (times depend on where you are). I have no idea if any of my footage even made it into the show, but given the positioning of everything shown on the website, it wouldn't surprise me if the points I made about how much of this is exaggerated and misleading don't make it into the episode, or if they do, they're presented completely out of context. So much for trying to bring a little sanity to reporting on these things. I guess reporting on reality, rather than the industry's spin, just doesn't play on cable news.

from the of-course-they-are dept

Next to the MPAA, the main lobbying organization that pushed SOPA was the US Chamber of Commerce. The organization and its laughably inept "Global Intellectual Property Center" are infamous for the fact that they have absolutely no shame in using completely bogus numbers to argue for bad laws that their highest spending backers support. Not surprisingly, the USCoC did not take the loss over SOPA lightly, and it appears that they're gearing up for the next version of SOPA in 2013. As pointed out by Gautham Nagesh, the USCoC has kicked off a new ad campaign priming the pump for new legislation to "protect intellectual property."

In other words: get ready for "son of SOPA."

The powerful business lobby, perhaps the biggest supporter of controversial legislation intended to stem online piracy, is at it again. The group is up with a billboard advertisement in Manhattan's Times Square and an online video series urging Congress to "protect America's IP rights."

The Chamber is claiming that "this is an awareness campaign.... not political," but no one believes that. They've also set up a "website" at DangerousFakes.com, which includes a silly video and more debunked stats.

This number is so bogus that it's been debunked through and through over and over again through the years. As we have explained, the real number may be closer to about $5 billion (still decently large, but nowhere near $250 billion) and that $250 billion is based on a single unsourced claim in an article in Forbes from 20 years ago. In other words: bogus.

96% of all online pharmacies are operating illegally, many out of compliance with international IP laws that protect the public health and safety.

Of course, this depends on how you define "illegally." Many are merely gray market re-importers, helping people get more affordable, and perfectly legitimate drugs. But the big pharma companies (USCoC members, of course) don't like the competition and efforts to drive down their insane margins.

In the United States, the domestic value of counterfeit pharmaceutical seizures in FY 2011 rose by more than $11 million, an increase of almost 200%.

And, again, how much of that was gray market, legitimate drugs that were just being re-imported? And how much of it were true "fakes"? Also, if the problem is really $250 billion, doesn't it seem to highlight how small a problem fake drugs are if the US seized just $11 million approximately $17 million worth? (Update: Correcting the number based on $11 million being the "increase" of "almost 200%" to approximate the total). Oh, and note that they said "domestic value," not the actual price. That's because they're taking the fake drugs and then inflating them way up to the price that would have been charged. Meaning the real amount seized was much, much less.

Counterfeits also have the potential to put our military at risk and jeopardize our national security missions, according to two recent reports by the Department of Commerce and the Government Accountability Office.

More fear mongering. And of course, if the military is buying counterfeit parts, shouldn't the focus be on the military's procurement process? Why is the military buying from shady equipment dealers in the first place?

The thing is, there is a risk from fake drugs and military equipment, but it's a really, really, really small problem. Barely noticeable. That's why the Chamber likes to lump those in with other things, like copyright infringement, because then they can pretend that the "risk" is really big. But it's not. I'm all for focusing in on stopping those who actually sell truly fake drugs and fake military parts, but there really aren't that many of those out there, and they can be targeted specifically, rather than passing broad legislation with massive consequences for the rest of the internet.